T25 Ancillary Order Flashcards
What is an ancillary order?
An ancillary order is an order made in addition to the sentence, but it is not a sentence itself. Common examples include
1) compensation, costs,
2) surcharge, football banning orders,
3) sexual harm prevention orders, and restraining orders.
AN ORDER MADE ALONGSIDE A SENTENCE
When can the prosecution apply for costs to be paid by the defendant?
The prosecution can apply for costs to be paid IF THE DEFENDENT IS CONVICTED. Under s18 of the Prosecution of Offences Act 1985, the defendant can be ordered to pay a sum that is just and reasonable.
What does a compensation order do?
The court may make a compensation order to compensate the victim for personal injury, loss, or damage. A compensation order can also be a sentence in its own right, as well as an ancillary order.
What is a surcharge?
The court is normally required to impose a surcharge when sentencing an offender.
What are the key points regarding a costs order in criminal court?
The court may order a convicted defendant or unsuccessful appellant to pay costs to the prosecutor.
The purpose is to compensate the prosecutor, not to punish the offender.
The amount should be just and reasonable, considering the offender’s means, and should not exceed the actual and reasonable costs incurred.
What are the key points regarding the payment of costs in relation to fines?
Costs should not be grossly disproportionate to any fine.
IMP
If the offender lacks the means to pay both costs and a fine, the costs should be reduced, not the fine. **
The amount of costs should not exceed what the defendant can reasonably pay, and the defendant should be given a fair opportunity to provide relevant financial information
ITS THE COST THAT SHLD BE REDUCED NOT THE FINE SHLD THE DF NO RICH
What are the key points regarding compensation orders?
Compensation orders can be a stand-alone sentence or an ancillary order.
The court must consider the offender’s means. Compensation orders can be imposed with a fine, but if the offender cannot pay both, compensation takes priority.
***
They can also be imposed alongside an immediate custodial sentence, though this is often undesirable.
When must the court order a surcharge and when can it be reduced or not applied?
->The court must order a surcharge for offences committed after 1st April 2007 unless:
A) The offender is given an absolute discharge or an order under the Mental Health Act. (ABSOLUTE DISCHARGE given)
B) A financial order (e.g. compensation) is made and the offender has insufficient means to pay both; the surcharge may be reduced or set to nil. ( FINANCIAL ORDER- COMPESNATION MADE)
C) Proceedings are postponed under POCA confiscation, though the surcharge can be imposed later.
D) The Secretary of State prescribes certain circumstances by regulation.
Bear in mind the court also has the power to order the consification or forfeiture of certain items or monies.
What is a Forfeiture Order
A Forfeiture Order allows the police to seize, retain, and destroy drugs and drug-related paraphernalia.
What is a Deprivation Order
A Deprivation Order allows the court to order the offender’s property, used or intended for the commission of an offence, to be deprived.
It does not affect the ownership rights of other persons
What is a confiscation order under POCA 2003
A confiscation hearing is mandatory if requested by the prosecution.
The court determines if the offender has benefitted from criminal activity, assuming that property obtained over time, if the offender had a “criminal lifestyle,” is linked to criminal activity unless it’s unjust.
The court then sets a confiscation order for the determined benefit amount, or a lesser amount if the offender proves only that lesser amount is available.
Where can a confiscation order under POCA be made, and what happens if magistrates think one is appropriate?
A confiscation order under POCA can only be made in the Crown Court. If magistrates believe an order is appropriate, they must commit the case for sentencing in the Crown Court.
RMBR CONFISCATION ORDER CAN ONLY MADE IN CC
IF MC BELIEVE CAN THEN MUST COMMIT CASE FOR SENTENCING IN CC
When can a confiscation order be made under POCA, and why is it often postponed?
A confiscation order can be made before sentence or postponed for up to two years. It is often postponed because financial investigations are required before the confiscation hearing can proceed.
